The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge
In this criminal case, Defendant Robert G. Pelle seeks to substitute new counsel, United Defense Group of Studio City, California ("UDG"), to represent him, over the objection of the United States due to an alleged conflict of interest. Two UDG attorneys, Lorilee and Angelyn Gates, before joining UDG, previously represented "CW", a confidential witness who is expected to testify against Pelle at trial, when the Gateses were associated with the firm that continues to represent CW, namely, Criminal Defense Associates, of Woodland Hills, California. CW, through his current attorney, Marie F. Alex, Esquire, also objects to UDG's proposed entry into this case for Mr. Pelle. The issue for resolution is whether, under the circumstances presented in this case, the conflict which would preclude the Gates' from representing Pelle is imputed to the UDG law firm with which they are presently associated pursuant to Rule 1.10(c) of the New Jersey Rules of Professional Conduct ("RPC").
On September 22, 2004, CW was arrested and he was detained upon a federal criminal complaint in the District of New Jersey, charged with conspiracy to transport a minor with intent to engage in sexual activity in violation of 18 U.S.C. § 2423(e). His initial appearance was convened on September 23, 2004, and a detention hearing was convened on September 29, 2004. CW retained Criminal Defense Associates, a law firm consisting of eight attorneys. CW was represented at the detention hearing and at all subsequent times by Criminal Defense Associates, where CW's case was assigned to attorney Marie Alex for pretrial purposes. If his case went to trial, the assigned trial attorney would have been Angelyn Gates, according to Marie Alex and supervising attorney Robert Nudelman.*fn1
Due to Ms. Alex's unavailability, Lorilee Gates traveled to New Jersey for the September 29th detention hearing and spoke with her client, CW, for about 30 minutes in preparation for the hearing; Lorilee Gates appeared at the hearing and won CW's release on conditions of bail. According to her affidavit, Lorilee Gates had no further contact with CW after the detention hearing. (Declaration of Lorilee Gates, undated, February 2007.)*fn2 Since joining UDG, she has not participated in any way in the representation of Mr. Pelle. (Id. ¶ 10).
Angelyn Gates' contact with CW while a Criminal Defense Associates attorney probably included making telephone calls on his case, including a call to the prosecutors to notify them of the firm's retention and to gather preliminary information regarding the status of the case. (Declaration of Angelyn Gates, February 5, 2007 at ¶¶ 3 & 4.) Angelyn Gates has no independent recollection of the details of any such calls in this matter, but states it is possible she talked with CW and has only a "vague recollection" of his matter. (Id. ¶ 1.) She has performed no services in connection with Mr. Pelle's case, is unaware of the details of it, and has not been given any information about it. (Id. ¶ 6.)
In late 2005, Angelyn Gates, Lorilee Gates, and a third attorney, Michael Bialys, Esquire, left the Criminal Defense Associates firm and joined UDG. Mr. Bialys is not known to have had any contact with CW's case.
In 2006, CW, represented by Ms. Alex, entered a plea of guilty to a one-count Information charging conspiracy to transport a minor in interstate commerce with the intent that the minor engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(e), for which he awaits sentencing. According to the colloquy at CW's Rule 11 hearing, Robert Pelle was his co-conspirator whereby Pelle agreed to transport a 12-year-old minor, to whom Pelle had access, from New Jersey to New York for purposes of unlawful sexual activity with CW, which then occurred in November 2003. Pelle is charged with the substantive offense under 18 U.S.C. § 2423(a) and aiding and abetting under 18 U.S.C. § 2, in Count Three of his Indictment, and CW is expected to testify as a material witness for the government against Mr. Pelle.
Mr. Pelle's proposed new attorney, Eric A. Chase, Esquire, of UDG, where he is a Senior Partner and Chief Counsel, has stated that he has had no discussions with Angelyn Gates or Lorilee Gates regarding the substance of their representation of CW. (Declaration of Eric A. Chase, undated, February 2007.) Mr. Chase assures the Court that neither Angelyn Gates nor Lorilee Gates will participate in any way in the representation of Mr. Pelle nor will they share in any portion of the fees paid by Mr. Pelle. (Id. ¶ 6.)
In January 2007, Mr. Pelle desired to change attorneys and retain UDG, with Eric Chase representing him. The Court was alerted to a possible conflict in a telephone conference with counsel, including Mr. Chase, on January 8, 2007. Mr. Chase gave written notice of the potential conflict on January 11, 2007. Counsel for CW, Marie Alex, Esquire, objected to UDG's retention on January 29, 2007. Ms. Alex rejected the suggestion in Mr. Chase's letter that his firm could represent Mr. Pelle so long as Lorilee and Angelyn Gates are screened from any participation. Ms. Alex wrote:
[W]e will be strongly objecting to your firm's representation of Mr. Pelle due to Ms. Gates previous involvement in the [CW] case while employed with Criminal Defense Associates. [CW] is not merely a potential witness in the Robert Pelle matter. [CW] is a material witness in the Pelle case. At Robert Pelle's federal trial, Mr. Pelle's attorney will be vigorously cross-examining [CW] who will be offering very damning testimony against Mr. Pelle. Because of Ms. Gates' involvement in this case, which involved a lengthy one-on-one interview and confidential communication with [CW] early into [CW's] arrest while he was in federal custody, we do not believe there is a wall thick enough to shield you or your firm from the contact regardless of [the intent to screen the other attorneys].
Letter of Marie Alex, dated January 29, 2007. On the next day, January 30, 2007, the United States Attorney's Office objected to Pelle's retention of UDG, arguing that such retention would violate New Jersey RPC 1.10(c). (Letter of AUSA Philip Degnan, January 30, 2007.)
At a status conference on January 31, 2007, a briefing schedule and argument date were set, and oral arguments were heard on February 13, 2007, in which Mr. Chase, Ms. Alex, Mr. Nudelman and AUSA Degnan participated. Mr. Pelle remains represented by his previously retained attorney, Robert Agre, Esquire, who also participated, until such time as substitution of counsel is approved. The previous trial date of ...